FOURTH SECTION

DECISION

Application no . 26104/08 Halina LIEBERSBACH and O thers against Poland

The European Court of Human Rights (Fourth Section), sitting on 27 August 2013 as a Committee composed of:

David Thór Björgvinsson , President, Vincent A. D e Gaetano, Krzysztof Wojtyczek , judges, and Fatoş Aracı , Deputy Section Registrar ,

Having regard to the above application lodged on 21 May 2008,

Having regard to the formal declarations accepting a friendly settlement of the case submitted by the second and third applicants,

Having deliberated, decides as follows:

THE FACTS

The first applicant, Ms Halina Liebersbach was born in 1952. Her sons: Norbert Stachowiak (“the second applicant”) and Mariusz Stachowiak (“the third applicant”) were born in 1975 and 1973 respectively. They all live in Poznań .

The Polish Government (“the Government”) were represented by their Agent, Ms J. Chrzanowska , of the Ministry of Foreign Affairs.

The circumstances of the case

The facts of the case, as submitted by the parties, may be summarised as follows.

1. Criminal proceedings against the second and the third applicants

On 29 October 2007 at 6 a.m. fifteen police officers showed up at the first applicant ’ s home in Poznań . They produced a search warrant and began the search of the applicant ’ s house. The first applicant submits that they broke several windows, destroyed the entrance doors and broke into the home ’ s safe, completely destroying it. She submits that she remained incompletely dressed until midday since the police officers did not allow her to change into her day clothes.

Subsequently, the police officers ordered her to follow them to her second home in Kiekrz , which had already been searched. Upon her arrival the first applicant discovered that her property had been seriously damaged. The entrance doors, as well as several windows were broken and holes in the ceiling were made.

On 30 October 2007 the third applicant was arrested and placed in detention. He was charged with distribution of drugs. He was released on bail on 10 June 2008.

On 10 April 2008 the second applicant was arrested while driving with his fiancée to a shop. He was allegedly kicked and beaten by the police officers arresting him.

On 14 April 2008 the second applicant was detained on remand and placed in the Wronki detention centre . He was charged with leading an organised criminal gang smuggling and distributing drugs. Nineteen other co-accused were charged in the same proceedings.

The second applicant ’ s detention on remand was extended on numerous occasions. On an unknown later date he was transferred to Rawicz prison.

On 6 August 2009 the Poznań Regional Court held the first hearing. On 10 September 2009 the trial court heard a witness, P.S. On 2 September 2010 the trial court finished collecting evidence from P.S.

On 6 September 2010 the Regional Court released all nineteen co ‑ accused. However it refused to release the applicant on the ground that there was a serious risk of collusion and the offences carried a severe penalty.

The second applicant was eventually released on bail on 15 April 2011 .

2. The alleged ill-treatment of the second applicant

On 10 April 2008 the second applicant was arrested while driving with his fiancée to a shop. He was dragged out of the car and thrown on the ground. He was kicked in the ribs and beaten.

On 11 April 2008, upon arrival in the Wronki detention centre he was examined by a doctor who noted, in his detainee health book:

“Light pain of right costal arch”.

Another note in the book, dated 15 April 2008 reads as follows:

“Pain in the rib cage, bottom right costal arch. Pain on pressure.”

On 22 April 2008 the second applicant underwent an x-ray of his rib cage which confirmed that there had been no radiological changes.

The first applicant complained on several occasions to the prosecutor in charge of the criminal investigation about her son ’ s alleged ill - treatment.

On 16 September 2008 the prosecutor informed her that, from the second applicant ’ s medical documentation from the Rawicz prison, it did not seem that he had complained about any alleged ill-treatment.

On 4 November 2008 the Minister of Justice informed the first applicant that during his interrogation with the prosecutor her son had not complained about the alleged ill-treatment of 10 April 2008.

3. Restrictions on the second and third applicants ’ contacts with their family

On her sons ’ arrest, the first applicant repeatedly requested the prosecutor in charge to be allowed to visit them in detention.

In May and June 2008 she asked on 14 occasions to be allowed to visit her sons in prison. On all occasions she was refused. The prosecutor stressed that she was a witness in the criminal proceedings against her sons and therefore her visit in prison could have interfered with the course of the investigation.

On 26 June 2008 the State Prosecutor confirmed that indeed the first applicant had not been allowed to visit her sons in prison. However, the refusals were caused by the complexity of the investigation and the fact that she was a witness in the proceedings.

On 25 June 2008 the first applicant was exceptionally allowed to visit the second applicant in prison. The visit was to take place on 3 July 2008. However, on that date the first applicant was informed that none of the officers from the Central Investigation Bureau ( Centralne Biuro Åšledcze ) was available to assist during the visit and therefore it was cancelled. The new visit was scheduled for 28 July 2008.

Subsequently the first applicant on numerous occasions asked to be allowed to visit the second applicant in prison. She submitted that she had refused to testify at the investigative stage of the proceedings. The prosecutor refused all these requests observing that the first applicant was still a witness and until she testified or refused to testify during the trial her requests to visit her son had to be refused.

She was exceptionally allowed to visit her son in December 2008.

Subsequently, the prosecutor continued to refuse her requests for visits.

The first applicant submits that the second applicant was granted visits from his father or aunt on average once a month.

COMPLAINTS

1. The first applicant complained without invoking any provisions of the Convention about damage to her property caused by the search of her homes on 29 October 2007.

2. The second applicant complained under Article 3 that he had been ill ‑ treated by the police officers during his arrest on 10 April 2008.

3. The second and third applicants complained about restrictions on the family visits in detention. In particular, they complained about refusals to allow them to see their mother.

THE LAW

A. Complaints of the second and third applicants

On 18 April 2013 the Court received the following declaration signed by the second applicant:

“ I, Norbert Stachowiak , note that the Government of Poland are prepared to pay me, with a view to securing a friendly settlement of the above-mentioned case pending before the European Court of Human Rights, PLN 10,000 (ten thousand Polish zlotys) to cover any and all pecuniary and non-pecuniary damage as well as costs and expenses, plus any tax that may be chargeable to me.

This sum will be payable within three months from the date of notification of the decision taken by the Court to strike the case out of its list of cases. From the expiry of the above ‑ mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points.

I accept the proposal and waive any further claims against Poland in respect of the facts giving rise to this application. I declare that this constitutes a final resolution of the case.”

On the same date the Court received the following declaration signed by the third applicant:

“ I, Mariusz Stachowiak , note that the Government of Poland are prepared to pay me, with a view to securing a friendly settlement of the above-mentioned case pending before the European Court of Human Rights, PLN 4,000 (four thousand Polish zlotys) to cover any and all pecuniary and non-pecuniary damage as well as costs and expenses, plus any tax that may be chargeable to me.

This sum will be payable within three months from the date of notification of the decision taken by the Court to strike the case out of its list of cases. From the expiry of the above ‑ mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points.

I accept the proposal and waive any further claims against Poland in respect of the facts giving rise to this application. I declare that this constitutes a final resolution of the case.”

On 2 May 2013 the Court received the following declaration from the Government:

“ I, Justyna Chrzanowska , declare that the Government of Poland offer to pay to Mr Norbert Stachowiak with a view to securing a friendly settlement of the above ‑ mentioned case pending before the European Court of Human Rights, PLN 10,000 (ten thousand Polish zlotys) to cover any and all pecuniary and non ‑ pecuniary damage as well as costs and expenses, plus any tax that may be chargeable to the applicant.

This sum will be payable within three months from the date of notification of the decision taken by the Court to strike the case out of its list of cases. In the event of failure to pay this sum within the said three-month period, the Government undertake to pay simple interest on them, from expiry of that period until settlement, at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points. The payment will constitute the final resolution of the case.”

On the same date the Court received the following declaration from the Government:

“I, Justyna Chrzanowska , declare that the Government of Poland offer to pay to Mr Mariusz Stachowiak with a view to securing a friendly settlement of the above ‑ mentioned case pending before the European Court of Human Rights, PLN 4,000 (four thousand Polish zlotys) to cover any and all pecuniary and non ‑ pecuniary damage as well as costs and expenses, plus any tax that may be chargeable to the applicant.

This sum will be payable within three months from the date of notification of the decision taken by the Court to strike the case out of its list of cases. In the event of failure to pay this sum within the said three-month period, the Government undertake to pay simple interest on them, from expiry of that period until settlement, at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points. The payment will constitute the final resolution of the case.”

The Court takes note of the friendly settlement reached between the parties. It is satisfied that the settlement is based on respect for human rights as defined in the Convention and its Protocols and finds no reasons to justify a continued examination of this part of the application.

In view of the above, it is appropriate to strike the case out of the list in so far as it concerns the second and the third applicants.

B. Complaint of the first applicant

The first applicant complained without invoking any provisions of the Convention about damage to her property caused by the search of her homes on 29 October 2007.

However, it appears that she did not institute any domestic proceedings in relation to her grievances. It follows that this complaint must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.

For these reasons, the Court unanimously

Decides to strike the application out of its list of cases in so far as it concerns the second and the third applicants in accordance with Article 39 of the Convention;

Declares the remainder of the application inadmissible.

Fatoş Aracı David Thór Björgvinsson Deputy Registrar President